Petitioner alleges that all Fatwas have the support of All India Muslim Personal Law Board and it is striving for the establishment of parallel Muslim judicial system in India. According to the petitioner, adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with. In order to highlight the severity of issue, petitioners presented the instances of a few fatawas which seems to be pertinently violative of rights conferred under part three of the constitution of India. Lets have a look upon then,

A Fatwa given by Dar-ul-Uloom of Deoband in relation to Imrana’s incident. Imrana, a 28 years old Muslim woman, mother of five children was allegedly raped by her father-in-law.

The question arose about her marital status and those of her children born in the wedlock with rapist’s son. The Fatwa of Dar-ul-Uloom in this connection reads as follows:

“If one raped his son’s wife and it is proved through witnesses, or the rapist himself confesses it, Haram Musaharat will be proved. It means that the wife of the son will become unlawful forever to him i.e. the son. The woman with whom father has copulated legally or had sexual intercourse illegally in both ways, the son can’t keep physical relationship with her.

The Holy Quran says:

“Marry not the woman whom your father copulated”

The Fatwa has dissolved the marriage and passed a decree for perpetual injunction restraining the husband and wife living together, though none of them ever approached the Dar-ul-Uloom.

Another Fatwa of which our attention is drawn rules that no police report can be filed against the father-in-law of Asoobi, who had allegedly raped her. According to the Fatwa, father-in-law could have been blamed only if there had either been a witness to the case or the victim’s husband had endorsed Asoobi’s allegation. Yet another Fatwa, which has been brought to our notice is in connection with Jatsonara, a 19 year old Muslim woman, who was asked to accept the rapist father-in-law as her real husband and divorce her husband.

In the aforesaid background, the petitioner has sought a declaration that the movement/ activities being pursued by All India Muslim Personal Law Board and other similar organizations for establishment of Muslim Judicial System and setting up of Dar-ul-Qazas (Muslim Courts) and Shariat Court in India are absolutely illegal, illegitimate and unconstitutional. Further declaration sought for is that the judgments and fatwas pronounced by authorities have no place in the Indian Constitutional system, and the same are unenforceable being wholly non-est and void ab-initio. Petitioner further seeks direction to the Union of India and the States concerned to forthwith take effective steps to disband and diffuse all Dar-ul-Qazas and the Shariat Courts and to ensure that the same do not function to adjudicate any matrimonial-disputes under the Muslim Personal Law.

Thus the contentions raised in the petition can be summarized as,

Shariat courts and other bodies like Dar-ul-Qazas, Dar-ul-uloom creates parallel court system and are unconstitutional, and

Fatawas issued are in contravention of fundamental rights of the citizen under constitution of India.

Thus this was the opportunity for honourable Supreme Court to decide on the issue which time and again struck news paper headlines in India. Such news of strange fatwas issued by Shariat courts and somewhat similar orders by khap panchayats are not new in India.

The stand taken by Union of India was this

Fatwas are advisory in nature and no Muslim is bound to follow those.

Further, Dar-ul-Qazas does not administer criminal justice and it really functions as an arbitrator, mediator, negotiator or conciliator in matters pertaining to family dispute or any other dispute of civil nature between the Muslims.

Dar-ul-Qaza can be perceived as an alternative dispute resolution mechanism, which strives to settle disputes outside the courts expeditiously in an amicable and inexpensive manner and, in fact, have no power or authority to enforce its orders and, hence, it cannot be termed as either in conflict with or parallel to the Indian Judicial System.

According to the Union of India, few bad examples may not justify abolition of system, which otherwise is found useful and effective.

The Union of India has not denied that Fatwas as alleged by the petitioner were not issued but its plea is that they were not issued by any of the Dar-ul- Qaza but by a Dar-ul-uloom.

Similar was the submission by other respondents, All India Muslim Personal law Board, Dar-ul-Uloom, Deoband, State of UP and State of Maharashtra.

They all raise the same plea that Fatawas are advisory in nature and lack any enforceability. Though Dar-ul-Uloom, Deoband admits issuing Fatwa in Imrana’s case as per Fiqah-e-Hanafi, which is based on Quaran and Hadith but asserts that it has no agency or powers to enforce its Fatwas. It is within the discretion of the persons or the parties who obtain Fatwas to abide by it or not. However, according to them, God fearing Muslims being answerable to the Almighty, obey the Fatwas, others may defy them. At no point of time respondents denied that fatawas as alleged are against the fundamental rights.

Court while dealing with the issue of Dar-Ul-Qazi courts examine the issue on the basis of source of its authority and as no legislation empower such courts held they do not constitute parallel court system.

This is quite interesting to note here that source of such courts were looked at the legislations, “Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. ” while such courts always claim authority under the religion and not statute, and court taking plea that there is no state enforceability to the decisions of such courts held they do not create parallel judicial administration, though it is apparent that they are dealing with the process of deciding rights and liabilities of the people and as such very much performing judicial function. So far as enforceability is concerned responded has accepted that god fearing Muslim will honour such fatwas. Was this not enough for the courts to declare such practice unconstitutional? Even a single instance of denying fundamental right of the individual must be dealt with highest constitutional authority; this is rather responsibility of the court to see no individual shall be allowed to waive his fundamental right. But court took lenient view and accepted the argument that such Muslim courts are like alternative dispute resolution mechanisms. This really call for further deliberation at highest level of judiciary through a constitutional bench.

On second issue, whether such fatawa are unconstitutional the court has not come out with clear opinion anyway rather has accepted the right of such bodies to issue fatwas in religious matters and held “A Fatwa is an opinion, only an expert is expected to give.” Rather than declaring any such fatwa illegal and unconstitutional court prefer to use the language “we observe that no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it. In the case of incapacity of such an individual, any person interested in the welfare of such person may be permitted to represent the cause of concerned individual.”

In the careful reading one can say court has recognised rights of such courts to issue fatwas even if they touch the constitutional rights of the individual, if asked by the concerned person. Does it mean that one can waive his fundamental rights? .

This case was a good opportunity for honourable court to warn the fundamentalist that in the era of constitution, religious fanatics has no place, no such attempt will be tolerated, but court rather than issuing warning merely declared such fatwas having no legal enforceability and has miserably failed to contained the instances which bring shame to this country. This is clearly a case of lost opportunity.